in the Matter of the Marriage of Shawndell Alicia Hultquist and Paul Cook ( 2021 )

Affirmed and Memorandum Opinion filed June 3, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00896-CV
IN THE MATTER OF THE MARRIAGE OF SHAWNDELL ALICIA
HULTQUIST AND PAUL COOK
On Appeal from the 312th District Court
Harris County, Texas
Trial Court Cause No. 2018-74844
MEMORANDUM OPINION
Shawndell Alicia Hultquist and Paul Cook filed petitions for divorce. After
a bench trial, the trial court entered a final decree of divorce and Cook appealed.
For the reasons below, we affirm.
BACKGROUND
Hultquist and Cook were married in May 2011. In October 2018, Hultquist
filed an original petition for divorce. Cook filed an answer and an original
counterpetition for divorce.
The parties proceeded to a bench trial in September 2019. The trial court
signed a final decree of divorce on November 1, 2019, and dissolved the parties’
marriage “on the grounds of insupportability and cruelty by [Cook] against
[Hultquist].” The trial court’s final decree of divorce also rendered a division of
the parties’ assets and liabilities. Neither party requested findings of fact and
conclusions of law. Cook timely appealed.
ANALYSIS
Cook raises the following issues on appeal:
1. The trial court erred “in not acting on [Cook’s] Emergency Motion to
Amend Temporary Orders to allow him to access the former
matrimonial domicile.”
2. The trial court erred by denying Cook’s “Motion to Appoint Real
Estate Appraiser and Personal Property Appraiser.”
3. The trial court erred “in not applying basic fairness to [Cook] with
regard to the discovery process and specifically the Trial Court Erred
by not applying Local Family Trial Division Court Rule 4.4 . . . which
imposes a duty of Disclosure on all litigants without a discovery
request.”
4. The trial court’s division of the parties’ assets constitutes an abuse of
discretion.
5. The trial court erred “in making an award of attorney’s fees against
[Cook] on three separate occasions.”
We begin by considering together Cook’s first and second issues.
I. Cook’s Motion to Amend Temporary Orders and Motion to Appoint
Real Estate Appraiser and Personal Property Appraiser
Cook raises issues challenging the trial court’s disposition of his
“Emergency Motion to Amend Temporary Orders” and “Motion to Appoint Real
Estate Appraiser and Personal Property Appraiser.” A review of the clerk’s record
shows that neither of these motions are included in the record.
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Although Texas Rule of Appellate Procedure 35.3(a) requires the trial court
clerk to timely prepare, file, and certify the clerk’s record, appellants bear the
burden to bring forward an appellate record that permits us to determine whether
the complaints raised on appeal constitute reversible error. See Tex. R. App. P.
35.3(a); see also Eagle Fabricators, Inc. v. Rakowitz, 344 S.W.3d 414, 421 (Tex.
App.—Houston [14th Dist.] 2011, no pet.). The motions Cook references on
appeal are not those that are automatically required to be included in the appellate
record under Texas Rule of Appellate Procedure 34.5(a) and, despite it being his
burden to do so, there is no indication Cook designated that those motions be
included in the appellate record before us. See Tex. R. App. P. 34.5(a), (b); see
also Eagle Fabricators, Inc., 344 S.W.3d at 421. Without these documents, we
cannot conclude whether the trial court’s rulings (or the alleged failure to rule) on
these motions constitutes error. See Eagle Fabricators, Inc., 344 S.W.3d at 421;
see also Wylie v. Simmons, No. 02-19-00241-CV, 2020 WL 7776796, at *20 (Tex.
App.—Fort Worth Dec. 31, 2020, pet. filed) (mem. op.) (where appellants did not
include motion to compel in appellate record, they could not show the trial court’s
ruling on the motion was in error); Mayfield v. N. Vill. Green I Homeowner’s
Ass’n, Inc., No. 01-12-00748-CV, 2014 WL 2538554, at *3 (Tex. App.—Houston
[1st Dist.] June 5, 2014, pet. denied) (mem. op.) (“[b]ecause she did not include
her motion for default judgment in the record, [appellant] cannot show the trial
court erred by denying it”).
We note that Cook included unofficial copies of these motions in the
appendix to his appellate brief. However, an appellate court cannot consider
documents attached to briefs and must examine the case based solely on the record
filed. See Watamar Holdings S.A. v. SFM Holdings, S.A., 583 S.W.3d 318, 328
(Tex. App.—Houston [14th Dist.] 2019, no pet.). Therefore, we may not rely on
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the documents included in Cook’s appendix to revisit the trial court’s rulings on
the motions Cook seeks to address on appeal.
We overrule Cook’s first and second issues.
II. Local Family Trial Division Court Rule 4.4
In his third issue, Cook contends the trial court erred by not applying Family
Trial Division Rule 4.4,1 which requires parties to a divorce proceeding to provide
each other certain property and financial information. Our review of the record
does not show that Cook raised this issue in the trial court.
To preserve error on a discovery dispute, the appealing party must obtain a
ruling by the court on the particular discovery issue the party seeks to address on
appeal. See Tex. R. App. P. 33.1(a)(1)(A) (to preserve error for appellate review, a
party must present the complaint to the trial court via a timely objection or request
and obtain a ruling thereon); see also Badall v. Durgapersad, 454 S.W.3d 626, 642
(Tex. App.—Houston [1st Dist.] 2014, pet. denied); Mayfield v. Fullhart, 444
S.W.3d 222, 226 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Failure to
do so waives the issue for appellate review. See, e.g., Badall, 454 S.W.3d at 642(the appellant’s complaint that the appellee failed to produce certain discovery
information was waived because the appellant “did not present this argument to the
trial court”); Mayfield, 444 S.W.3d at 226 (the appellant’s argument that the
appellees failed to respond to her discovery requests was waived where the record
did not show she raised this issue in the trial court and received a ruling).
Here, because the record does not show that Cook raised his Family Trial
Division Rule 4.4 argument in the trial court and received a ruling, this complaint
is waived. See Tex. R. App. P. 33.1(a)(1)(A); see also Badall, 454 S.W.3d at 642;
1
See Rules of the Judicial District Courts of Harris County, Texas, Family Trial Division,
https://www.justex.net/Courts/Family/LocalRules.aspx (last visited May 3, 2021).
4
Mayfield, 444 S.W.3d at 226. We overrule Cook’s third issue.
III. Trial Court’s Division of Property
Cook’s challenge to the trial court’s property division raises three
arguments:
1. “The docket entry indicates that the judge found the marriage
‘insupportable’ indicating a no fault divorce then goes on further to
state that he found [Cook] at ‘fault’ for cruelty . . . . No evidence of
cruelty was ever adduced at trial therefore anything other than a 50/50
split was error and an abuse of discretion.”
2. “The Court made a finding of waste where there was no testimony
about any of the items regarding waste. All that was submitted was a
spreadsheet indicating credit card charges for dinners and other causal
spending.”
3. “The Court made a ruling on the value of the family home based on
the tax value not any of the comparables submitted by [Cook] which
were proffered at trial and showed the property to be significantly
higher in value and failing to admit these comparables as evidence.”
We consider these arguments separately.
A. Fault
The trial court’s final decree of divorce states that the parties’ marriage “is
dissolved on the grounds of insupportability and cruelty by [Cook] against
[Hultquist].” We construe Cook’s first argument as challenging the trial court’s
finding regarding cruelty as well as its subsequent division of the marital estate.
1. Standard of Review and Governing Law
In a divorce proceeding, the trial court “shall order a division of the estate of
the parties in a manner that the court deems just and right, having due regard for
the rights of each party and any children of the marriage.” Tex. Fam. Code Ann.
§ 7.001. On appeal, we review the trial court’s division of community property for
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an abuse of discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Quijano
v. Quijano, 347 S.W.3d 345, 349 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
Assessments of the legal and factual sufficiency of the evidence are not
independent grounds for reversal but are relevant factors in assessing whether the
trial court abused its discretion. Quijano, 347 S.W.3d at 349. “To prevail on a
complaint about the division of property, an appellant has the burden of
demonstrating based on the evidence in the record that the division was so unjust
and unfair as to constitute an abuse of discretion. In re Marriage of O’Brien, 436
S.W.3d 78, 82 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
The division of the parties’ estate need not be equal, and fault is one of the
factors a trial court may consider in dividing the community estate. Kaley v.
Kaley, No. 14-17-00768-CV, 2019 WL 2097490, at *3 (Tex. App.—Houston [14th
Dist.] May 14, 2019, no pet.) (mem. op.). “Generally, in a fault-based divorce, the
court may consider the conduct of the errant spouse in making a disproportionate
distribution of the marital estate.” Id. The grounds available for a fault-based
divorce include cruelty. See Tex. Fam. Code Ann. § 6.002. “To be considered
cruel treatment, the conduct of the accused spouse must rise to such a level that it
renders the couple’s living together insupportable.” In re Marriage of Garcia, No.
14-17-00444-CV, 2019 WL 1523483, at *7 (Tex. App.—Houston [14th Dist.] Apr.
9, 2019, no pet.) (mem. op.). Insupportability is defined in the Texas Family Code
as a state in which the legitimate ends of the marital relationship have been
destroyed and where any reasonable expectation of reconciliation is prevented.
Tex. Family Code Ann. § 6.001.
2. Evidence and the Trial Court’s Division of the Marital
Estate
Cook was the first witness to testify at the bench trial. According to Cook,
he previously had worked as a schoolteacher and resigned from his position after
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he tested positive for drugs. Cook testified that he currently was working as a
carpenter and living with his mother. Cook said his mother pays for all his bills,
including the attorney’s fees incurred in the divorce proceeding.
Describing himself as a “recovering addict,” Cook said he previously had
used marijuana, cocaine, amphetamines, and methamphetamines. Cook also
testified that he previously had bought “fake urine” to “cheat a [drug] test.” When
asked if he was in a drug recovery program, Cook said he is “working on the
steps.” According to Cook, Hultquist knew that Cook had a “drug dependency”
when they first met.
Cook testified that he previously was involved in a “modification case”; the
“modification case” appears to reference a court proceeding to change Cook’s
custody or visitation arrangements with respect to his child from a prior
relationship. Cook said he had “no idea” how much his attorney in the
modification case was paid. An exhibit admitted into evidence during Cook’s
testimony showed he owed approximately $11,000 for legal representation in
connection with the modification case. When asked why he did not provide any
additional information with respect to the modification case, Cook said “I never
made any effort to do that. Sorry.”
Cook acknowledged owing $12,000 in credit card debt. Cook also testified
that he did not have an affair while married to Hultquist but said he previously had
created a profile on a dating website and listed his marital status as “single.”
According to Cook’s testimony, he failed to produce a substantial amount of
information regarding assets relevant to the divorce proceeding including: (1) a
sworn inventory and appraisal; (2) the amount of money in his retirement account;
(3) information and appraisals with respect to the community’s three vehicles; and
(4) the valuation of his carpentry business.
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At the time of trial, Cook said he had not contributed to the marital home’s
mortgage payments for approximately six months. Cook testified that he
nonetheless was “asking this [trial] court to award [him] the marital home.” Cook
acknowledged that he did not have a “source of constant income” but said his
mother would pay for the home’s costs. Cook also requested that he receive $500
in monthly spousal maintenance from Hultquist.
Hultquist was the second witness to testify at the bench trial. Hultquist said
she works in a law office and earns approximately $17-20 an hour. Hultquist
requested that the trial court dissolve her marriage on grounds of cruelty. To
support this request, Hultquist said Cook would call her derogatory names,
including “bitch” and “gold-digging whore.” Hultquist said Cook previously had
conversations with her in which he “made some admissions about relationships he
has with other people.” Hultquist also said that, “[i]f [she] didn’t have sex with
[Cook], he would get really mad and angry.” According to Hultquist, Cook had
called her a few days before trial “screaming” at her and telling her she “had to
take his deal or else.”
Hultquist said Cook incurred $11,000 in attorney’s fees in the modification
case. Hultquist testified that these fees were a “waste” because Cook “knew he
was a drug addict” when he was litigating the case. According to Hultquist, she
discovered during the modification case that Cook was “smoking meth” when,
during Cook’s testimony, the questioning attorney introduced Cook’s positive drug
test results. Hultquist estimated that Cook spent approximately $10,000 on drugs
throughout their marriage.
Hultquist said she had been paying the mortgage on the marital home for
two years and asked the trial court that she be awarded the home in the property
division. Admitted during Hultquist’s testimony was the Harris County Appraisal
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District’s 2019 valuation of the marital home, which set the home’s value at
$299,000. To offset her retention of the marital home, Hultquist offered to pay
Cook $25,000.
Hultquist estimated that Cook’s retirement account contained “about
$50,000” since Cook had worked as a schoolteacher for twelve years. Also
admitted into evidence was Hultquist’s inventory and financial information
statement valuing the parties’ assets and liabilities.
After the parties rested, the trial court signed a final decree of divorce and
rendered the following disposition of the parties’ property, assets, and liabilities:2
Property to Hultquist: Property to Cook:
• The parties’ marital home • Tools, tables, and shop items in
($299,000). the marital home’s garage
($50,000).
• Household furniture, fixtures, • All of his retirement accounts (in
and goods save and except her testimony, Hultquist
Cook’s personal items in the estimated these accounts totaled
garage and attic ($7,418.10). $50,000).
• All sums of cash in her • All sums of cash in his possession
possession ($1,400). ($333.43).
• A 2016 Nissan Pathfinder and a • A 2018 Nissan Titan (vehicle’s
2016 Nissan Rogue (vehicles’ net equity valued at $40,193).
net equity valued at $32,062).
2
The valuations of the properties and debts contained in parentheses are based on
Hultquist’s exhibits admitted during trial, including her “Inventory and Appraisement.”
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Debts to Hultquist: Debts to Cook:
• The balance due on the • $11,000 incurred in attorney’s
promissory note on the marital fees in the modification case.
home ($111,853.82).
• Balances owed on two credits
cards ($1,451).
The trial court’s final decree of divorce imposed a judgment lien on the marital
home to secure a $57,650 “equalization payment” from Hultquist to Cook. The
divorce decree also awarded Hultquist $9,250 in attorney’s fees, with $1,750 of
that amount attributable to fees and costs incurred during the parties’ “discovery
dispute.”
3. Application
Here, the evidence in the record supports the trial court’s dissolution of
Cook’s and Hultquist’s marriage on grounds of cruelty.
Hultquist testified that Cook would call her derogatory names and tell her he
was having relationships outside of their marriage; as a result of his treatment,
Hultquist testified that her hair was falling out, she got stress rashes, and she
developed high blood pressure. Hultquist testified that Cook denied using drugs
until he was confronted with positive drug test results while testifying in the
modification case. Hultquist estimated that Cook spent approximately $10,000 on
drugs through the marriage. The trial court, as the trier of fact, reasonably could
have relied on this testimony to conclude that Cook’s conduct rose to such a level
that rendered the parties’ living together insupportable. See Tex. Fam. Code Ann.
§ 6.002; In re Marriage of Garcia, 2019 WL 1523483, at *7.
This finding regarding cruelty also supports the trial court’s disproportionate
division of the community estate. See Kaley, 2019 WL 2097490, at *3. Based on
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the evidence admitted at trial, the property and debts distributed to Hultquist equal
approximately $226,000. The property and debts distributed to Cook (including
the payment from Hultquist secured by a lien on the marital home) equal
approximately $177,000. This difference is not punitive, particularly since Cook
testified that he deliberately failed to produce a substantial amount of information
regarding assets relevant to the divorce proceeding. Cook also testified that he
receives a substantial amount of financial support from his mother, which would
further lessen the impact from the unequal division of the parties’ community
estate. See Murff, 615 S.W.2d at 699 (in dividing the parties’ community estate,
the court may consider the parties’ relative financial conditions); see also, e.g.,
Halleman v. Halleman, 379 S.W.3d 443, 453 (Tex. App.—Fort Worth 2012, no
pet.) (concluding the trial court’s division of the community estate did not
constitute an abuse of discretion, the court noted that wife’s mother (1) purchased a
home for wife, (2) made the home’s monthly mortgage payments, and (3) paid
wife’s legal fees in the divorce proceeding).
We conclude the trial court’s division of the parties’ community estate is not
“so unjust and unfair” as to constitute an abuse of discretion. We overrule Cook’s
challenge to the trial court’s division.
B. Waste
Cook’s second argument challenges the trial court’s “award for waste” and
argues “there was no testimony or other non hearsay evidence to support such an
award.”
The trial court’s final decree of divorce did not make any awards premised
on “waste”. Because this argument does not show any reversible error in the trial
court’s judgment, we overrule Cook’s challenge on this point. See Tex. R. App. P.
44.1.
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C. Evidence of Marital Home’s Value
Cook’s third argument asserts the trial court’s value of the marital home
failed to take into account the “comparables submitted by [Cook]” that “showed
the property to be significantly higher in value.” Cook contends that “[t]he value
listed was tax value not market value which the Court had before it but refused to
have it admitted.”
Before trial began, Cook’s attorney referenced an exhibit he sought to admit
that listed several homes sold in the area near the marital home and their list prices.
Hultquist’s attorney stated that she would not stipulate to the exhibit’s admission.
Cook’s attorney did not seek to admit the exhibit into evidence during the bench
trial.
To preserve error regarding the exclusion of evidence, the complaining party
must actually offer the evidence and secure a ruling from the trial court. See Tex.
R. App. P. 33.1; In re Kahn, 533 S.W.3d 387, 394 (Tex. App.—Houston [14th
Dist.] 2015, no pet.) (orig. proceeding). Here, the record does not show that Cook
met these requirements. Therefore, we overrule his challenge on this point, and
overrule his fourth issue.
IV. Attorney’s Fees
In his final issue, Cook contends “[t]he Trial Court erred in making an award
of attorney’s fees against [Cook] on three separate occasions as there was no basis
therefore since all [Cook] ever sought was disclosure of financial information
which is guaranteed by the local rules and state law and therefor [sic] for the Court
to make such an award was manifest reversible error.”
Aside from listing this argument in his “Points of Error”, Cook does not
raise any argument or cite any legal authority to support his contention that the trial
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court’s attorney’s fee awards were in error.3 Thus, Cook waived this issue by
failing to properly brief it. See Tex. R. App. P. 38.1(i) (“The [appellant’s] brief
must contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.”). We overrule Cook’s fifth
issue.
V. Sanctions
Finally, Hultquist requests in her appellee’s brief that we “award damages in
the form of attorney’s fees” on grounds that Cook’s appeal “was filed to delay the
award made by the trial court [and] harass and annoy [Hultquist].”
If we determine that an appeal is frivolous, we may, on the motion of any
party or on our own initiative, award the prevailing party “just damages”. See Tex.
R. App. P. 45. “To determine whether an appeal is frivolous, we review the record
from the viewpoint of the advocate and decide whether the advocate had
reasonable grounds to believe the case could be reversed.” Glassman v.
Goodfriend, 347 S.W.3d 772, 782 (Tex. App.—Houston [14th Dist.] 2011, pet.
denied) (en banc). We are not required to sanction every frivolous appeal; rather,
the imposition of sanctions is a discretionary decision exercised with prudence and
caution only after careful deliberation. Id. Sanctions are not appropriate when,
despite the failure to convince us on appeal, the appellant’s argument has a
reasonable basis in law and constitutes a good-faith challenge to the trial court’s
judgment. Goss v. Houston Cmty. Newspapers, 252 S.W.3d 652, 657 (Tex.
App.—Houston [14th Dist.] 2008, no pet.).
After reviewing the record, we decline to award sanctions for a frivolous
appeal. We deny Hultquist’s request for damages under Rule 45.
3
Moreover, the trial court’s final decree of divorce renders two attorney’s fee awards in
favor of Hultquist, rather than the three awards referenced in Cook’s argument.
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CONCLUSION
We affirm the trial court’s final decree of divorce.
/s/ Meagan Hassan
Justice
Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
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